Law as a means of Social Engineering: Roscoe Pound

Submitted To: Submitted By:

Prof. Nancy Raja Sanmanbir Singh

UILS Roll No. 89/12

Panjab University 2nd Semester

B.A. LL.B. (Hon.)

Acknowledgement

I would like to take this opportunity to thank everyone who put forth their time and efforts to

help me to develop this project. This project took a long time from the collection of information

to the compilation.

This project could not have been made without the guidance of our Jurisprudence teacher,

Prof. Nancy, who not only served as our supervisor, worked extra time for our convenience but

also encouraged us to work hard. Thank you Ma’am.

Raja Sanmanbir Singh

Index

Name Page No.

1. Roscoe Pound 1

2. Social Engineering : The Concept 2

3. Theory of Social Engineering 4

4. Criticism 8

5. Conclusion 10

Roscoe Pound

Dean Roscoe Pound emerged at a period in USA when his fore runners especially

Holmes in ‘The Path of Law’ and Cardozo in ‘The Nature of Judicial Process’ had

chartered a definite course for legal philosophy oriented to social good and social

justice. The two great judges of the Supreme Court had brilliantly demonstrated

the thesis that law to be correctly understood should be studied in the context of

history, sociology, economics, psychology as well as the overall objective traits,

traditions and needs of each society. The rule of law and life out to flow together

parallel and not in opposite direction.

Some of his celebrated works are the ‘Spirit of the Common Law) (1921), ‘An

Introduction to the Philosophy of Law’ (1922), ‘Interpretations of Legal History’

(1923), ‘Law and Morals’ (1926), ‘The formative Era of the American Law’ (1938),

‘Contemporary Juristic Theory’ (1940), ‘Administrative Law – Its Growth,

Procedure and Significance’ (1942), ‘Social Control through Law’ (1942), ‘The Task

of Law’ (1944) etc.1

1 Dhyani, S.N., “Fundamentals of Jurisprudence”, Central Law Agency, Allahabad, p-329,330

Social Engineering : The Concept

Roscoe Pound was one of the greatest leaders of sociological school of

jurisprudence. He introduced the Doctrine of Social Engineering which aims at

building and efficient structure of society which would result in the satisfaction of

maximum of wants with the minimum of friction and waste. It involved the

rebalancing of competing interests.

Roscoe Pound defined the legal order by reference to the end of law :

“The legal order may well be though of as a task or as a great series of tasks of

social engineering; as an elimination of friction and precluding of waste, so far as

possible, in the satisfaction of infinite human desires out of a relatively finite store

of the material goods of existence.”

‘Interests’, ‘desires’, ‘claim’, ‘wants’ - for the most parts of words are used

interchangeably in Pound’s writings, although ‘interests’ sometimes serves as the

inclusive term.2 Like the engineer, the jurist constructs, creates – but not out of

thin air. Like the engineer he must work with resistive materials, without which,

however he could not build at all; and always there are adverse conditions

imposed upon his activity. Friction and waste, represented by a sacrifice of

interests which might be secured, must be overcome. The task is one for human

activity; though requiring methodical care, there is nevertheless nothing static

about it. Technique and materials may be improved. Jurist must work on, must

2 Makkar, Karandeep, “Law as a tool for Social Engineering”, Manupatra, p3

create and ever greater, ever more serviceable structure. The engineering analogy

stands out as graphic and timely.

He propounds that task of jurists is to find out those factors which would help in

the development of culture conducive to the maximization of satisfaction of

wants. These factors are principles as Jural Postulates.3

3 Ibid, P-4

Theory of Social Engineering

Roscoe Pound conceived law as a ‘social engineering’, its main task being to

accelerate the process of social ordering by making all possible efforts to avoid

conflicts of interest of individuals in the society. Thus, Courts, Legislators,

Administrators, and Jurists must work with a plan and make an effort to maintain

a balance between the competing interests in society. He enumerated the various

interests which the law should seek to protect and classified them into three

broad categories namely :-

1. Private Interests

2. Public Interests

3. Social Interests

Private Interests

a.) Individual’s interests of personality, namely interests of physical integrity,

reputation, freedom of volition and freedom of conscience. They are

safeguarded by laws of crimes, torts, contracts, constitutional law etc.

b.) The interests of domestic relations of persons such as husband and wife,

parent and children, marital life as also the individual’s private interests.

c.) The interests of property, succession, testamentary disposition, freedom of

contractual relations, association etc. are also included in the category of

private interests. 4

Public Interests

The main public interests according to Pound are –

a.) Interests in the preservation of the State as such.

b.) State as a guardian of social interests such as administration of trusts,

charitable endowments, protection of natural environment, territorial

waters, sea shores, regulation of public employment and so on.

Social Interests

The social interests which need legal protection are –

a.) Interests in the preservation of peace, general health, security of

transactions etc.

b.) Preserving social institutions such as religion, political and economic

institutions etc.

c.) Interests preserving general morals by prohibiting transactions which are

against morality such as prostitution, drunkenness, gambling etc.

4 Paranjape, N.V., “Studies in Jurisprudence and Legal Theory”, Central Law Agency, Allahabad, P-72

d.) Interests in conservation of social resources eg. Natural resources,

reformation of delinquents, protection of economically weaker section of

the society.

e.) Social interests in general progress including economic, political and

cultural progress. For example, freedom of trade and commerce, freedom

of speech and expression, encouragement to arts and promotion of higher

education etc.

f.) Interests which promote human personality by enabling a person to live

political, physical, cultural, social and economic life to suit his taste and

improve his personality. 5

When he conceives law as a social engineering, he is reading law and its

administration as a part of much wider process of social ordering, functioning

through courts and administrative agencies with the aid of legal precepts serving

as partial guides. The task of social ordering presupposes a sincere effort to avoid

or atleast ameliorate, collisions resulting from conflict of interests. All the varied

activities of legal order or the efforts of the courts, administrators, legislatures,

jurists are to be directed toward the adjustment of relations the compromise of

conflicting claims, the securing of interest by determining of boundaries wherein

each maybe asserted with a minimum of friction and the finding of means

whereby greater number of claims may be satisfied with a sacrifice of fewer. If

law is viewed as social engineering, its end is conceived to be satisfaction of all

demands and securing of all interests with a minimum of conflict so that the

means of satisfaction have the widest possible distribution.5 Ibid, P-72,73

It may be noted that Pound’s techniques of Social Engineering are –

a.) Study of actual social effects of legal institutions and legal doctrines

b.) Study of the means of making the legal rules effective

c.) Sociological study for law making

d.) Study of judicial method

e.) A sociological history

f.) The importance of reasonable and just solutions of individual cases 6

g.) Of a ministry of justice to make efforts more effective toward the purpose

of legal order.

The above facts and considerations should be taken into account by the jurists of

sociological jurisprudence to make law purposive, need based and goal oriented.

In essence the sociological jurists look at law functionally. They ask how the

methods of Jurisprudence work. What consequences have flowed from these

methods in action? How far they have enabled the law to achieve its end or on

the other hand interfered with its achieving them? Pound is pragmatic, functional

and experimental advocating social ordering and control through law, ‘to

promote and maintain ideal relations among mankind.’

Law, therefore as a science of social engineering is more concerned with actual

operation of law rather than its abstract content. Such an approach considers law

as an authoritative guide to decision making. It stresses on social purposes which

law serves rather than sanction. Just as engineers minimize friction and waste

when dealing with machines similarly jurists ought to enable to resolve conflicts in

6 Supra-note 1, P-330,331

society in the interests of harmony, reform and progress. This methodology is

described by Pound as Social Engineering.7

Criticism

7 Ibid, P-331

Despite Pound’s great contribution to sociological jurisprudence and his emphasis

on studying the actual working of law in society, his theory suffers from certain

drawbacks. Pound’s theory of social engineering has been criticized for the use of

the term ‘engineering’ which equates society to a factory like mechanism. Law is a

social process rather than the result of an applied engineering equating society

with a factory is not correct because the former is changing and dynamic in

nature whereas the latter is more or less static. Again Pound’s emphasis on

‘engineering’ ignores the fact that law evolves and develops in the society

according to social media and wants for which law may either have approbation

or disapprobation.

Dr. Allen has criticized the utilitarian in Pound’s theory as it confines the

interpretation of ‘wants and desire’ to only material welfare of individual’s life

completely ignoring the personal freedoms which are equally important for a

happy social living.

It has also been argued against Pound’s theory of interests that it has no

significance in a pluralistic society where there are linguistic, ethnic, and religious

minorities having diverse interests. Harmonizing their divergent interest is by no

means an easy task to be performed through law and courts.

Dr. Friedmann has expressed doubts about the value of classification of interests

and remarked that there are changing conceptions as had been accepted by

Pound himself. Not only that, the respective value of these interests and their

evaluation also depends on changing political and legal system. For example, a

liberal progressive government would lay greater emphasis on freedom of

individual rights and of established institution but a totalitarian state would

suppress the interests of individual in favour of the interest of the state.

Be that as it may, there is no doubt that through his legal theory Pound has

attempted to bring law into closer relation with other social sciences and tried to

strike a balance between freedom of individual and social control through the

instrumentality of law. His greatest contribution to jurisprudence is that he is

practical in approach and concentrate of law in society.8

Conclusion

8 Ibid, P-75

Law as a tool for social engineering comes into play only when there is unequal

distribution of wealth in society or when social justice is denied to certain sections

of the people, so to bring equilibrium. Law tries to remove inequalities and the to

benefit whole community rather than a few individuals.

Bibliography

1. Dhyani, S.N., “Fundamentals of Jurisprudence”, Central Law Agency,

Allahabad

2. Makkar, Karandeep, “Law as a tool for Social Engineering”, Manupatra

3. Paranjape, N.V., “Studies in Jurisprudence and Legal Theory”, Central Law

Agency, Allahabad